Sage and Sand: A Delay Is a Win

Recent good news on several of our fights deals a setback to the greed machine

It’s a stormy, humid morning in the desert. It only dropped to 86 degrees overnight with the high humidity. Passing thunderstorms this morning felt revitalizing. Word is it rained for about 15 minutes on the York Fire, burning about 50 miles south of here. Hopefully that knocks down some of the extreme fire behavior they’ve seen. It smells like a wet campfire out right now. In reality that is the wet charred remains of Joshua trees. Perhaps that’s the new smell of relief in summer, when the monsoon knocks back a fire. A best case scenario? Our new climate reality sure is strange and grim.

But not everything is grim. “Though much has been lost, much remains,” said Ed Abbey. I had that on a notecard taped to my computer monitor for years. We have such an amazing desert to fight for. I snorkeled yesterday in a desert warm spring with rare fishes, thousands of them eating algae and invertebrates and going about their lives, unconcerned that their habitat is threatened by oil and gas and agriculture. What a miracle, water in the desert. Fighting to save this water is our last, best chance at saving our desert. Water is life, all the more so in the desert. How lucky we are to get to devote our lives to protecting it in return.

The fight is long and hard, so we need to celebrate the wins when they come. We had a few of reasons to feel good in recent weeks, with important incremental victories in two of our campaigns, and promising signs in another. By no means should one interpret it as turning the tide against the current resource extraction boom. But in several cases, the ramifications of these incremental wins could have resonance over the coming years as the clean energy transition continues to take shape.

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The Battle for Ash Meadows – Round One

A recent furor over proposed exploratory lithium drilling near Ash Meadows National Wildlife Refuge has thrown the complicated issues of the clean energy transition into sharp relief. Not some obscure species of vegetable or animal, but instead a world-famous wetland wildlife refuge host to a dozen federally protected obscure species, Ash Meadows has instantly come to symbolize the conflict over the clean energy transition. A Canadian mining company, Rover Metals, has proposed to drill up to 30 boreholes on BLM land directly adjacent to Ash Meadows, including with in just 2,000 feet of the shimmering jewel of Fairbanks Spring. Fairbanks Spring which is designated critical habitat for the Ash Meadows Amargosa pupfish, an endangered fish, and home to the Fairbanks Spring pyrg, a rare springsnail.

I won’t belabor the virtues of Ash Meadows beyond a single paragraph – instead come for a walk with me some time and I’ll share with you everything I love about the place where hydrology becomes biology. Suffice to say it is the grandmother of all groundwater dependent desert spring ecosystems in the Mojave Desert – a hotbed of endemism of global significance. 25 endemic or near-endemic species, hundreds of species of birds, thousands of gallons per minute flowing out of dozens of springs across the refuge. The United Nations has designated the refuge a RAMSAR Wetland of International Importance. To this desert rat, it’s the most special place on Earth.

In what one would like to believe was a rote bureaucratic exercise gone bad, BLM rubberstamped Rover’s mineral exploration notice to drill these boreholes without any environmental review, and without any consultation with the US Fish and Wildlife Service. This despite the presence of extremely rare and federally protected species nearby and despite the fact that Rover already declared they were anticipating intersecting groundwater in each one of their boreholes. Mineral exploration notices that entail impacts to less than 5 acres of public land do not require a plan of operations and do not require review under the National Environmental Policy Act (NEPA).

While BLM frequently argues they do not have discretion to say no to mineral exploration notices, the law plainly states different. 43 CFR 3809.11 indicates circumstances when a mineral exploration notice will not be sufficient, and a plan of operations (POO) must be submitted for an exploration project. A POO (yes my job frequently requires me to use an acronym that also happens to be a funny word) is a detailed description of a project and must undergo environmental review under NEPA. In this case, 43 CFR 3809.11(c)(6) states that a POO must be submitted if the project is in “any lands or waters known to contain Federally… listed threatened or endangered species or their… designated critical habitat…” While we could have an argument about how close to the endangered species habitat has to be to the mining exploration to constitute being “land known to contain endangered species,” there is no argument about the water. The water Rover will be intersecting is clearly at least partially the same water feeding the endangered species habitat at Ash Meadows and 43 CFR 3809.11(c)(6) unequivocally applies.

Which is what we argued in court. We got word from their public statements that Rover Metals was planning on beginning drilling in mid-July. So our attorneys fired up the lawsuit machine and launched into action. The Center partnered with Roger Flynn from the Western Mining Action Project on this project. Mr. Flynn has been a lead attorney on dozens of important mining cases across the West, and we benefitted tremendously from his knowledge and experience on this. Mr. Flynn and our Nevada staff attorney Scott Lake worked round the clock for several weeks, getting out a lawsuit and then moving from preliminary injunction to halt BLM’s approvals of the project before the drill rigs showed up.

We also partnered with the local nonprofit the Amargosa Conservancy, who were our co-plaintiffs in this effort. I’m lucky enough to serve on the board of directors of the Amargosa Conservancy, and my fellow board members made the decision (I abstained) to join the litigation, in recognition of the extraordinary threat to Ash Meadows. The Amargosa Conservancy certainly didn’t take the decision lightly – the organization had never filed a lawsuit in its 20-year existence. But the threat to the Amargosa Basin is truly existential right now, and so the Conservancy joined the lawsuit and launched into organizing mode.

We filed our lawsuit on July 7^th. The Amargosa Conservancy also submitted a letter to Secretary Haaland signed by 20 groups urging her to require a full environmental review and Endangered Species Act consultation. Additionally they submitted a petition with over 1,200 signatures from interested people from around the Amargosa Basin and the country, urging the same. Colton Lochhead of the Las Vegas Review-Journal reported on a particularly spicy Nye County Commission meeting the day before we filed our lawsuit, where residents and commissioners all sounded off about their outrage at BLM permitting this project with no environmental review. To pile on, even the normally stoic Nature Conservancy’s Nevada chapter sounded off in opposition to Rover’s project, taking the extraordinary measure (for them) of publicly issuing a press statement and putting it on their website.

On July 17^th, we filed our motion for preliminary injunction to halt BLM’s authorization of the project and halt the drill rigs before they started drilling. The motion for PI was accompanied by numerous declarations which were really very strong additions to our case and worth reading. First was an expert declaration on hydrogeology from hydrogeologist Andy Zdon of Roux, Inc., who has been working in the Amargosa Basin for 20 years. Mr. Zdon’s declaration detailed the likelihood of Rover hitting artesian conditions in their boreholes, and the possibility of them causing uncontrolled artesian flow, and potentially damaging or destroying Fairbanks Spring or other springs at Ash Meadows. Another important expert declaration on Ash Meadows’ biodiversity came from fish biologist Steve Parmenter, recently retired from the California Department of Fish and Wildlife. Mr. Parmenter detailed the global significance of the biodiversity at Ash Meadows, and the potential impacts of the Rover project. Additionally, my friend and Amarosa Basin community leader Susan Sorrells joined our lawsuit as a standing declarant. Ms. Sorrells is a fourth-generation resident of the Amargosa Basin – Fairbanks Spring is literally named after her great-grandfather! She owns the ecotourism businesses in the community of Shoshone, California, just down the Amargosa River from Ash Meadows. We were honored that she brought her long history of conservation advocacy and her local credibility to our lawsuit.

Ralph “Dad” Fairbanks at Fairbanks Spring, c. 1905

Less than 48 hours after the motion for preliminary injunction was filed, BLM relented. Mr. Lochhead published an article on July 19^th in the Review-Journal, detailing what appeared to be dysfunction between BLM and its lawyers. Less than two hours later, at the unusual hour of 7:45pm (we know because the signature is time-stamped), BLM Southern Nevada District Manager Angelita Bulletts signed a notice of recission, formally withdrawing BLM’s authorization of Rover’s project. Using unusual verbiage, BLM said their previous actions were “in error,” and said they’d determined that the “proposed operations are likely to result in disturbance to localized groundwaters that supply the connected surface waters associated with Threatened and Endangered (T&E) species in local springs in the Ash Meadows National Wildlife Refuge (NWR), and perhaps cause significant impacts to other identified T&E species in and around the Notice area.” They cited the exact arguments we made in our lawsuit and said that if Rover wanted to proceed they’d need to file a plan of operations and undergo NEPA review. Exactly what we demanded in our lawsuit! Success!

It's highly unusual to have BLM do a complete about face so rapidly. It’s equally unusual to actually stop an exploration project dead in its tracks. The 1872 Mining Law is so accommodating for miners, and notice-level mineral exploration is such a lightly regulated activity, that it’s almost impossible to stop it. That we were able to do so, before the drilling even started, and in really just a handful of weeks – like 11 weeks or so – is pretty incredible.

I’ve been giving a lot of thought as to what’s different. Why was the community who cares about the Amargosa able to rise up to swiftly and deftly to achieve this incremental win? Certainly the significance of Ash Meadows is part of it – it’s not some obscure wildflower in a forgotten corner of Nevada, it’s a National Wildlife Refuge of global significance. And the numerous endangered species present are protected by law, after all. But it’s the community that made the difference. There is an existing community and culture of conservation around the Amargosa that has been in existence since the 1960s. It’s like there was already a machine primed and ready to go and we just had to activate it. This is a completely different scenario from almost every other issue we work on, where such a machine needs to be built from the ground up, something that only occasionally materializes.

I think there’s also a lot of gunshyness at BLM right now, after the spectacles of Tiehm’s buckwheat and the Dixie Valley toad have frankly made the Interior Department look pretty silly. And while perhaps they can tolerate black eyes on those projects because they’re tucked into corners of the desert no one ever sees and backed by big moneyed interests, the black eye of them allowing Canadian drill rigs to destroy Ash Meadows without even doing NEPA on it first was too much for BLM to bear.

None of that is to say it’s over. Rover has already announced they plan on filing a POO and commencing NEPA on their proposal. I think it’s damn foolish and throwing good money after bad, and Mr. Cutler would be best served by packing up his bags and heading back to Canada and forgetting he ever heard the word “Amargosa,” but… if Mr. Cutler would like to dance, we shall dance. If folks thought there was a shit storm for the hastily thrown together notice-level exploration project in an information-poor environment, wait for the storm that will ensue in the more formal setting of NEPA, with us having months to get our act together first. You ain’t seen nothing yet.

As for the broader significance – will the Rover Metals episode be a turning point in the battle for a sustainable clean energy transition? Hard to say. If they file a POO and we have to wage round 2 and 3 and more of this battle, that hardly feels like a turning point. On the other hand, if we can leverage our recent win into longer term protections for the area and potentially into a discussion about declaring some places off limits to extraction, then perhaps it could be a bellwether. Stay tuned.

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The Dixie Valley Toad Gets Another Chance

Our fight to save the Dixie Valley toad from extinction made important progress recently, as BLM ordered geothermal developer Ormat to conduct a new environmental review for the Dixie Meadows Geothermal Project, along with Section 7 consultation under the Endangered Species Act. Big deal, one might say, BLM is requiring NEPA. Don’t they always?

Recall our journey to get here, however. June, 2017: BLM issues a disgracefully inadequate Draft EA for the project. September, 2017: We file an ESA petition for the toad. July, 2018: Positive 90-day finding on ESA petition. November, 2019: Lawsuit over blown listing deadline. January, 2021: BLM issues a second, still inadequate Revised Draft EA. November, 2021: BLM authorizes the project issuing a Final EA, the day before Thanksgiving. December, 2021: We litigate and move for temporary restraining order and preliminary injunction. January, 2022: Injunction granted by District Court. February, 2022: Temporary restraining order halting construction overturned by the 9^th Circuit. Also February: Construction of the project commences. Also February: FWS settles our listing lawsuit with rapid deadline for listing decision. April, 2022: FWS emergency lists the toad. August, 2022: 9^th Circuit rules against our preliminary injunction. The same day: Ormat agrees to suspend construction pending ESA consultation. December, 2022: Final listing rule for the Dixie Valley toad.

And now, this. After a year of messing around with ESA consultation on Dixie Meadows, BLM and Ormat finally acknowledged that they just can’t make the current EA work, so it’s back to the drawing boards. At some point in the near to mid term future we will have a new environmental review document of some sort, and a new public comment period, then eventually a new decision, a first round at ESA consultation, and the inevitable litigation to follow when BLM finds some other screwy way to contort science and authorize this project, against the advice and wisdom of every non-BLM, non-Ormat scientist who has examined the issue. It’s the circle of life.

I was out at Dixie Meadows last week. My god, it’s a special place. I mean you travel around these desert lands over and over again until you seem to know every roadside attraction, every Russian-olive choked abandoned ranch, every ramschackle former roadhouse brothel, all of it. To then wind 40 miles away from pavement and come across this incredible burst of the most brilliant, crisp, stark green that you’ve ever seen, an oasis of verdant marsh grasses in an ocean of shadscale and saltbush and playa. It’s such an incredible feeling – like you’ve stumbled into Shangri-La. It’s not nearly as big as Ash Meadows – a tiny fraction of the size, about 1/17^th of the total discharge. But that makes it no less special. A few hundred acres of verdant life, surrounded by rocky peaks and seasonally inundated mud flats.

Dixie Meadows last week, verdant after the wet winter

We camped out there – perched on a small bench above the Cold Spring at the south end of the Dixie Meadows hot spring complex. (Cold Spring isn’t very cold – about 75 degrees.) We saw raptors hunting over the marsh at dusk. Insect life was abundant after dark. Bats, nighthawks. Sunrise found us tromping through the largest of the marshes, mouths agape at the the stunningly hot water (150 degrees or more at the hottest springs and marshes), catching a glimpse of an exceedingly small toad here and there, hopping away into the dense bulrush at our approach.

The water, the thermal springs, the absolute abundance of life at Dixie Meadows. Truly one of the special places in this desert. The Fallon Paiutes thought so too. This was a place of healing for them. Sacred waters. You can read a detailed discussion of the significance of Dixie Meadows to the Fallon Paiute in tribal member Rochanne Downs’ declaration from the motion for preliminary injunction we filed alongside the Tribe back in December 2021.

So now, we wait for another round of NEPA. Another round of hydrologists arguing in memoranda. Another round of FOIAs and, most likely, another round of litigation. The difference this time is that the Dixie Valley toad is now listed under the Endangered Species Act, the most powerful conservation law in the world. Its best hope.

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A Reprieve for the West Desert

Happy to report another setback for those who would exploit water for economic gain over communities and environment… Central Iron County Water Conservancy District (CICWCD – Sick Wicked) has had to press the pause button on their environmental review for the Cedar City water grab pipeline, which would suck water out of Pine, Wah Wah and Hamlin Valleys and drain the West Desert of Utah and the Great Salt Lake flow system. Their Environmental Impact Statement has officially been put on “paused” status, according to its ePlanning site.

Great Basin Water Network has done a phenomenal job of rallying disparate interests against the water grab. From Tribes and rural counties and communities to Cedar City ratepayers to a huge swath of environmental groups to even Nevada interests, a chorus has been rising across the Intermountain West that the Cedar City water grab is a regressive, outdated, destructive approach to dealing with water scarcity. Comprehensive and incisive environmental impact statement comments were filed from a huge coalition. Lawsuits have been initiated. An Endangered Species Act petition was filed. There’s been skullduggery and intrigue at the Utah legislature and in various non-legislative governmental bodies. It’s been an all out war to stop this pipeline. And while it’s very true that BLM’s DEIS for the pipeline was totally inadequate and vulnerable to litigation, that broader political context – the maelstrom surrounding this proposal – certainly played in to the halt on NEPA progress.

We are still waiting on a 90-day finding on our petition to list the least chub under the Endangered Species Act. It’s been 669 days since we submitted our petition. We sued them over it. The US Fish and Wildlife Service is a bit late. It’s actually somewhat surprising because the bar for a 90-day finding is usually quite low – does the petition present credible scientific evidence that the petitioned action may be warranted? The fact that it’s taken so long for them to issue the finding suggests political intrigue. It will ultimately be a battle of hydrology. If you accept Sick Wicked and BLM’s hydrologic characterization, there will be no problems to least chub habitat from Cedar City water grab pumping, and thus there is no credible scientific evidence that the species will be threatened with becoming endangered. If you accept the alternative hydrologic characterizations, then clearly we present compelling scientific evidence. It would just be unusual for such a decision to be rendered in a denial of a petition at the 90-day finding stage. So now we wait…

In the meantime, Sick Wicked says they “need more time” to conduct studies and address issued raised in the DEIS comments, per general manager Paul Monroe’s comments to the enterprising Mr. Lochhead in the Review-Journal. If they come back, and that’s not a given, they can always walk away from this project. But if they come back, they will almost certainly need to do a supplemental EIS. So… another round of NEPA. We’ll see if they can muster the dollars and the political will to do another regulatory tango.

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Themes

A maxim I was once taught which rings true in every fight we undertake:

All of our wins are temporary; all of their wins are permanent.

You’ll note a theme between these three incremental wins: progress halted on projects, pending new environmental review. In all three cases, NEPA litigation, either filed or threatened, is what ultimately pushed the projects to be put on hold. And in all three cases, the table is set for a new round of NEPA. This highlights an inherent limitation in NEPA cases: they generally just get you more NEPA.

In the case of Ormat, a well-funded multinational corporation, it’s highly likely they will continue to throw good money after bad at Dixie Meadows and do more hydro studies, more NEPA, etc. They’ve shown a determination not to let this project die despite setback after setback.

In the case of Rover Metals, an extremely junior Canadian mining exploration outfit that as far as we can tell consists of one person, it’s unclear how they will proceed. Doing a full NEPA analysis and hydro studies and everything required to drill their holes will cost a lot of money and time. And then there’s the problem that they’re extremely unlikely to be able to permit an actual mine next to Ash Meadows, even if they somehow manage to permit exploration. So I’m a little more skeptical as to what they will do.

As for Sick Wicked and their dastardly pipeline… I wouldn’t hold my breath on it, but water grabs never die. As long as they hold those water rights, there will be an impetus for them to move forward with the pipeline.

All of that said, there is a corollary to the above maxim. If all of our wins are temporary, then…

A delay is a win.

You never know how extrinsic factors may change during a delay that ultimately derails a project. Perhaps the market for whatever commodity they’re producing changes. Perhaps investment dries up. Perhaps the person driving the project at the company changes jobs. Perhaps politics change. A delay that sounds like just a new round of NEPA could turn into years could turn into never. We just don’t know.

So, we fight like hell for the delay, and then when we get it, we celebrate it as a win. Because if you wait to actually slay the dragon, you’re unlikely to ever have a win to celebrate. All of our wins are temporary, so we might as well party like it’s 1999 while we have the chance.

A final note… While crusaders on these projects like myself and Mr. Roerink at the Water Network and Mr. Voehl at the Amargosa Conservancy are the ones who end up in the newspapers and on the TV cameras, the public interest lawyers who back us up are the unsung heroes here. Mr. Lake from the Center and Mr. Flynn from Western Mining Action Project put in long and late-night hours getting out the motion for TRO/PI before the drill rigs showed up at Ash Meadows. Mr. Lake and the Fallon Paiute Shoshone Tribe’s attorney Wyatt Golding have had an epic saga with Dixie Meadows, including multiple oral arguments and a decade-long administrative record with dozens of complex hydrologic studies. And Simeon Herskovits and Iris Thornton of Advocates for Communities and Environment have helmed a legal strategy that is really only just beginning against the Cedar City water grab, and the mere sight of them representing an army of community and environmental interests has been enough to scare off Sick Wicked.

Public interest attorneys do the same or more work than the corporate attorneys they square off against, and for a fraction of the pay. There will sometimes be an army of high dollar attorneys from powerful firms on one side of the courtroom and our couple of brave public interest warriors on the other. And yet each of these attorneys described here has a demonstrated track record of success in pushing back against those high dollar attorneys and the corporations they represent, and has achieved important incremental success here. Their dedication is an inspiration to me, every day.

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So while we wait for the shoe to drop on all of these projects, we can breathe a little easier for now. Cheers to biodiversity and the people who fight for it. Keep on down that long and dusty trail,

-Patrick